the enticement of her husband occurred while she was living with him.12

121

SAME-INJURIES TO WIFE-DOUBLE CAUSE OF ACTION.

164. Where the injuries to the wife complained of do not arise from a state of facts in which the wife's own wrong is an essential part, there are two distinct causes of action:

(a) The injury to the wife;

(b) The injury to the husband.

164a. At common law the husband was a necessary party to proceedings on both causes of action. This has been generally, but not universally, changed by statute, so as to allow the husband and the wife to sue separately and in their own names for their respective damages.

The

The husband may complain of the seduction of his wife. corresponding right is not naturally extended to a married woman. In most of the cases already considered, the wrong involved is exclusively the husband's. The wife's own conduct in itself is a wrong to him. But, whenever she is innocent, the legal aspect of the facts change entirely. The woman who consents to adultery is in a very different position in law from that occupied by the unfortunate victim of a rape. And the right of a husband to sue for the injuries of his wife, caused by either violence or negligence, is not inconsistent with her right to recover on the same state of facts. His damage is consequential, and consists of loss of service, society, medical expenses, and other incidental losses.122 Her damage is direct, and

121 Buckel v. Suss (Super. N. Y.) 18 N. Y. Supp. 719; Id., 2 Misc. Rep. 571, 21 N. Y. Supp. 907. But see Postlewaitę v. Postlewaite, 1 Ind. App. 473, 28 N. E. 99. Article on "The Husband Seducer," 26 Am. Law Rev. 36. As to action by wife against her father and mother-in-law, see Young v. Young, 8 Wash. 81, 35 Pac. 592.

122 Skoglund v. Railway Co., 45 Minn. 330, 47 N. W. 1071; Mann v. City of Rich Hill, 28 Mo. App. 497; Blair v. Railroad Co., 89 Mo. 334, 1 S. W. 367; Reading v. Pennsylvania R. Co., 52 N. J. Law, 264, 19 Atl. 321; Brooks v. Schevern, 54 N. Y. 343; Mewhirter v. Hatten, 42 Iowa, 288; Tuttle v. Rail

arises from the injury to her person, her individual suffering, and similar harm.

Parties Plaintiff.

This was distinctly recognized by the common law.123 But, under its peculiar doctrine as to this relationship, the husband and wife were required to be joined as parties plaintiff in an action for personal injuries to her.124 This requirement has generally been changed by statute so that ordinarily, but not always,125 the wife may recover for her peculiar injury, and the husband for his.126 In

way Co., 42 Iowa, 518; St. Louis S. W. Ry. Co. v. Henson, 7 C. C. A. 349, 58 Fed. 531.

123 Hyatt v. Adams, 16 Mich. 180; Michigan Central R. Co. v. Coleman, 28 Mich. 439 (reviewing cases, page 444); Burt v. McBain, 29 Mich. 262; Leonard v. Pope, 27 Mich. 145.

124 Mathews v. Central Pac. R. Co., 63 Cal. 450; Mosier v. Beale, 43 Fed. 358. Husband and wife as plaintiff's in malpractice, see Lynch v. Davis, 12 How. Prac. (N. Y.) 323; Long v. Morrison, 14 Ind. 595; Twombly v. Leach, 11 Cush. (Mass.) 397. 3 How. Ann. St. § 1446c, provides that on "any person or persons sustaining bodily injury" by a defective street, the corporation shall be liable "to the person or persons so injured." Held not to authorize a husband to sue a city for loss of services of his wife from injuries caused by a defective sidewalk. Neither does 3 How. Ann. St. § 1446d, which provides that if any horse or other animal, or any cart, carriage, or vehicle, “or other property” is injured by reason of such neglect, the corporation shall be liable to and pay the owner thereof just damages, which may be recovered in an action, etc., authorize such suit. Roberts v. City of Detroit (Mich.) 60 N.

W. 450.

125 A suit for personal injuries and wrongs done to a wife must be brought by her husband in his own name. Fournet v. Steamship Co., 43 La. Ann. 1202, 11 South. 541. Et vide San Antonio & A. P. Ry. Co. v. Corley (Tex. Civ. App.) 26 S. W. 903; Snashall v. Metropolitan Ry. Co., 19 D. C. 99; Metropolitan St. R. Co. v. Johnson, 90 Ga. 500, 16 S. E. 49; Barker v. Railway Co., 92 Ala. 314, 8 South. 466; Gallagher v. Bowie, 66 Tex. 265, 17 S. W. 407; Mewhirter v. Hatten, 42 Iowa, 288; Tuttle v. Chicago, R. I. & P. R. Co., Id. 518; Stone v. Evans, 32 Minn. 243, 20 N. W. 149. The husband and wife have separate injuries on which to base action for criminal assault on the wife. Johnston v. Disbrow, 47 Mich. 59, 10 N. W. 79. As to violation of right of husband and wife to sleep together, vide Pullman Palace-Car Co. v. Bales (Tex. Sup.) 14 S. W. 855; Id., 80 Tex. 211, 15 S. W. 785.

126 Kelley V. Mayberry Tp., 154 Pa. St. 440, 26 Atl. 595; Henry v. Klopfer, 147 Pa. St. 178, 23 Atl. 337, 338 (this case also discusses at length the measure of the husband's damage).

such cases, the joinder of the husband with the wife as a coplaintiff would seem to be a mere irregularity, which may be corrected by striking out his name.127 She may certainly recover for injuries to a business carried on by her as a feme sole, 128 when such injuries are specially pleaded.129 Thus, he may sue alone for libel,130 slander,131 or other damage done her person, including pain and suffering,132 caused by the negligence of another.133 Inasmuch as the services of a married woman belong to her husband, any injury to her, injuriously affecting them, would naturally be a part of the damages which he can recover.134 But a physical injury impairing her capacity to labor has been classified with pain and suffering,

127 Colvill v. Langdon, 22 Minn. 565.

128 Wolf v. Bauereis, 72 Md. 481, 19 Atl. 1045.

129 Uransky v. Dry-Dock, E. B. & B. R. Co., 118 N. Y. 304, 23 N. E. 451; Woolsey v. Trustees, 61 Hun, 136, 15 N. Y. Supp. 647. In an action for trespass on the land of a wife, the husband may be joined as plaintiff, though under Rev. St. Ind. 1881, § 254, he is not a necessary party. Atkinson v. Mott, 102 Ind. 431, 26 N. E. 217. The cause of action for personal injuries to the wife accrues to the community estate represented by the husband, and in the absence of a showing of exceptional facts entitling the wife to relief he alone can sue. The refusal of a husband to bring an action for injuries to the wife does not entitle the wife to sue alone. Rice v. Mexican Nat. R. Co. (Tex. Civ. App.) 27 S. W. 921. A review of the married women's property act of 1893, 97 Law T. 407.

130 Pancost v. Burnell, 32 Iowa, 394; Pavlovski v. Thornton, 89 Ga. 829, 15 S. E. 822.

131 Logan v. Logan, 77 Ind. 588.

132 Haden v. Clarke, 56 Hun, 645, 10 N. Y. Supp. 291; Atlanta St. R. Co. v. Jacobs, 88 Ga. 647, 15 S. E. 825.

133 Chicago, B. & Q. R. Co. v. Dunn, 52 Ill. 260; Hennies v. Vogel, 66 Ill. 401; Chicago, B. & Q. R. Co. v. Dickson, 67 Ill. 122; City of Rock Island v. Deis, 38 Ill. App. 409; Berger v. Jacobs, 21 Mich. 215; Du Bois Borough v. Baker, 120 Pa. St. 266, 13 Atl. 783. Compare Heirn v. McCaughan, 32 Miss. 17; Cross v. Guthery, 2 Root (Conn.) 90; Hyatt v. Adams, 16 Mich. 180. And see Atlanta St. Ry. Co. v. Jacobs, 88 Ga. 647. In New York, the wife could maintain such suit between 1880 and 1890. Weld v. New York, L. E. & W. R. Co., 68 Hun, 249, 22 N. Y. Supp. 974; Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17; Campbell v. Perry (Sup.) 9 N. Y. Supp. 330; Haden v. Clarke (Sup.) 10 N. Y. Supp. 291; City of Portland v. Taylor, 125 Ind. 522, 25 N. E. 459; Mosier v. Beale, 43 Fed. 358.

134 Becker v. Janinski (Com. Pl.) 15 N. Y. Supp. 675; 27 Abb. N. C. 45, note on page 46; Carr v. Easton, 7 Pa. Co. Ct. R. 403; Bloom v. Manhattan El.

and she has been held to have such an interest in her working capacity that she can recover for its impairment the amount depending on the nature of the injury and the length of time during which the pain and deprivation will continue.135 While, ordinarily, the husband, being liable for them, should recover for medical and similar expenses involved in the injury to the wife,136 she has still been allowed to include them in the measure of her damages. 137 Where the wife cannot recover for personal injuries, because guilty of contributory negligence, her husband cannot recover for the loss of her services consequent on such injuries.138 A husband and wife cannot recover for a personal injury to the wife, if the husband was guilty of contributory negligence.139

Ry. Co. (Sup.) 17 N. Y. Supp. 812; National Bank v. Sprague, 20 N. J. Eq. 13; Hall v. Incorporated Town of Manson (Iowa) 58 N. W. 881; Yopst v. Yopst, 51 Ind. 61; Reynolds v. Robinson, 64 N. Y. 589; Shaeffer v. Sheppard, 54 Ala. 244; Bolman v. Overall, 80 Ala. 451, 2 South. 624; Uransky v. Dry-Dock, E. B. & B. R. Co., 118 N. Y. 304, 23 N. E. 451; Porter v. Dunn, 131 N. Y. 314, 30 N. E. 122; Kavanaugh v. Janesville, 24 Wis. 618; Barnes v. Allen, 1 Abb. Dec. 111; Phillippi v. Wolff, 14 Abb. Prac. (N. S.) 196; Sloan v. New York Cent. Ry. Co., 1 Hun, 540; Mewhirter v. Hatten, 42 Iowa, 288; Meese v. City of Fond du Lac, 48 Wis. 323, 4 N. W. 406; City of Wyandotte v. Agan, 37 Kan. 528, 15 Pac. 529; Mann v. City of Rich Hill, 28 Mo. App. 497; Blair v. Chicago & A. R. Co., 89 Mo. 334, 1 S. W. 367; Skoglund v. Minneapolis St. Ry. Co., 45 Minn. 330, 47 N. W. 1071. In Pennsylvania, a husband may file a stipulation releasing to his wife his right for damages. Kelley v. Mayberry Tp., 154 Pa. St. 440, 26 Atl. 595. As to the right of wife to re cover when she is engaged in the service of another, and not in household duties, see Brooks v. Schwerin, 54 N. Y. 343; Tuttle v. Chicago, R. I. & P Ry. Co., 42 Iowa, 518; Neumeister v. Dubuque, 47 Iowa, 465; Carr v. Easton, 7 Pa. Co. Ct. R. 403.

135 Atlanta St. R. Co. v. Jacobs, 88 Ga. 647, 15 S. E. 825; Metropolitan St. Ry. Co. v. Johnson, 90 Ga. 500, 16 S. E. 49. A husband cannot, under 3 How. St. §§ 1446c, 1446h, recover for loss of services of his wife injured by a defective sidewalk. Roberts v. City of Detroit (Mich.) 60 N. W. 450.

136 Belyea v. Minneapolis, St. P. & S. S. M. Ry. Co. (Minn.) 63 N. W. 627. 137 City of Columbus v. Strassner (Ind. Sup.) 34 N. E. 5. See Henry V. Klopfer, 147 Pa. St. 178, 23 Atl. 337, 338; Burnham v. Webster, 54 N. Y. Super. Ct. 30; Lewis v. Atlanta, 77 Ga. 756; Wolf v. Bauereis, 72 Md. 481, 19 Atl. 1045.

138 Winner v. Oakland Tp., 158 Pa. St. 405, 27 Atl. 1110, 1111. But see Honey v. Chicago, B. & Q. R. Co., 59 Fed. 423.

139 Pennsylvania R. Co. v. Goodenough (N. J. Err. & App.) 28 Atl. 3 (Dixon, J., dissenting).

CHAPTER VIII.

WRONGS AFFECTING REPUTATION.

165. Defamation Defined.

166. Publication-Libel, Slander, and Malicious Prosecution Distin

165. Defamation is a false publication calculated to bring into disrepute. As to its objects, it may refer to(a) Persons, when it is commonly called libel and slander; or

(b) Things, when it is commonly called slander of property or title.

Defamation is the generic name for injuries to reputation. While it is commonly called slander of title when it concerns property, still, where the words of a publication apply to property, in such a way as to injure the reputation of the owner by exposing him to hatred, contempt, or ridicule, it is a libel on such person.1

1 State v. Mason (Or.) 38 Pac. 130; or to write that a bookmaker sells immoral books. Tabart v. Tipper, 1 Camp. 350; or that a merchant's wine is poisoned or tea coppered. Colteman, J., in Ingram v. Lawson, 6 Bing. N. C. 212216. But see Willard v. Mellor, 19 Colo. 534, 36 Pac. 148 ("rubbish" not libelous).